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When most people think of digital assets, cryptocurrency such as Bitcoin or Ethereum comes to mind. However, digital assets encompass much more and are already integrated in most aspects of life. Chances are you already own or utilize digital assets, such as your photo library, email and social media accounts. Other digital assets include online banking portals, online payment services such as Venmo or PayPal and business assets like websites, content or digital storefronts. Understanding which digital assets you own and what happens to them upon death or incapacity is an increasingly important part of your estate plan.

The law has been slow to keep up with the rapidly evolving scope of digital assets. In 2016, North Carolina adopted the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). While RUFADAA does provide a helpful framework for allowing fiduciaries to access such digital assets after death, it does not provide a “one size fits all” solution.

RUFADAA sets out a three-tier system for determining control of digital assets after death. First, if a platform offers an online tool for a customer to allow others to manage their assets after death, the terms of that platform control. Not all platforms offer this, and they differ in the scope of their online tool. For instance, Facebook, owned by Meta, allows you to name a legacy contact who can manage a memorialized account after death with some limitations. Whereas Instagram, also owned by Meta, requires your personal representative to present proof of death before deleting or memorializing an account. Google Inactive Account Manager provides one of the more robust options to dictate what happens to your data upon death or incapacity. It allows you to name trusted contacts and set preferences around access for those contacts.

Second, to the extent that no online tool is available, or if one is available but not used by the digital asset owner, then estate planning documents should govern. A power of attorney (POA) can name an agent to manage the principal’s assets on their behalf, including during any period of incapacity. North Carolina requires specific language in a POA for an agent to manage digital assets. If your current POA was created in North Carolina before 2018, it is unlikely to include provisions for digital asset management and should be updated accordingly. A will can name a fiduciary to manage digital assets upon death, and a trust can name a fiduciary to manage digital assets owned by the trust upon death or incapacity. These digital asset clauses must contain explicit permission for fiduciaries to gain access to digital content, including accessing emails, and should reference RUFADAA.

Finally, if there is no applicable online platform tool available and the estate plan doesn’t authorize a fiduciary to access and manage digital assets, then the default rule is that the digital platform’s terms of service apply. Of course, these vary in scope and availability, and many prohibit access to such accounts entirely, regardless of your wishes.

It is important to note that while RUFADAA was adopted to help in areas of uncertainty, it does NOT currently override terms of service agreements. This means that even if you authorize your agent or personal representative to access a digital platform, if the terms and conditions of that platform do not allow access to anyone other than the principal, then a fiduciary may be blocked from accessing that account. Thus, in addition to including digital assets clauses in your estate plan, it is judicious to research and utilize in-platform tools because they can help gain access to platforms that otherwise restrict access. Otherwise, a personal representative may have to petition the court for an order requesting legal authorization over certain digital assets.

The laws and regulations on digital assets will continue to evolve. Currently, there are gaps in the laws, and they cannot be fully relied upon to ensure someone has access to and management over your digital assets upon your incapacity or death. As such, it is recommended that you evaluate by whom and how you want your digital assets managed if you become incapacitated or upon your death and make sure you have named an agent in each platform’s online tool if available, especially for any significant assets. As a backstop, you should ensure you have named an agent with access to your digital assets in your estate planning documents. As with the rest of your estate plan, your digital asset planning should be revisited periodically for changes in accounts and laws.

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Hannah Baublitz, J.D.